Buttigieg: City cannot release tapes

Doing so would be violation of federal law

June 01, 2012|By TOM MOOR | South Bend Tribune

SOUTH BEND -- Despite mounting pressure, Mayor Pete Buttigieg maintained Friday that the city cannot release tapes related to a police telephone recording scandal, but added that the city will send them to the U.S. Department of Justice for possible review.

A day after the U.S. Attorney's Office for the Northern District of Indiana announced its investigation into the matter was over, Buttigieg said it would be a violation of federal law for him or anyone else in the public to listen to the tapes. The tapes are rumored to contain officers making racist or possibly illegal comments.

Instead, Buttigieg said the city will be sending the five cassette tapes to the Civil Rights Division of the U.S. Department of Justice, which the mayor said has "more authority" to review the tapes. The Justice Department could possibly report back some of the findings if it agrees to listen to them, he said.

The FBI, which investigated the department for violations of the Federal Wiretap Act, is in the process of sending the tapes to the city's legal department.

"I'm very concerned about the allegations," Buttigieg said. "I want to know what's on them just like anyone else. Right now, there's no legal way to listen to the tapes or disclose what's on them."

The statements came a day after David Capp, the U.S. attorney for the Northern District of Indiana, announced that no charges will be filed against former police chief Darryl Boykins or former 911 communications director Karen DePaepe.

Meanwhile, some members of the South Bend Common Council, led by president Derek Dieter and vice president Oliver Davis, drafted a letter Friday calling for the release of the tapes and reinstatement of Boykins and DePaepe to their former posts.

Boykins was demoted to captain and DePaepe was fired after Buttigieg claimed last month they would face possible felony charges if he didn't make personnel changes in the police department. Boykins and DePaepe maintain they have done nothing wrong.

The letter sent by Capp Thursday, stating no charges are warranted, has only fueled many to demand more answers from the mayor's office and the release of the tapes, which are rumored to include officers making racist remarks about Boykins, who was the city's first black police chief. DePaepe reportedly brought the tapes to the chief's attention last year.

Dieter said Friday that the council may call for an executive session next week, where it may look into hiring an attorney to investigate the matter. Dieter and other council members also plan to push for the tapes to be released.

"Absolutely," he said. "We're going to do everything in our power."

Davis filed a public records request with the city Friday, seeking all tapes related to the firing of DePaepe and demotion of Boykins. The Tribune also filed a request on Thursday for the same information.

When pressed about whether he should reinstate the two employees because no charges were filed, Buttigieg responded with strong statements, including: If "such serious mistakes bring down an investigation, you're probably going to lose your job in this administration."

"Mistakes so serious they shouldn't keep jobs," said Buttigieg, who added the employees may have come within an inch of being indicted.

Capp did not say whether the mayor's personnel moves were a factor in charges not being filed.

Davis said in a news release apparent inconsistencies in the mayor's comments over the past several weeks have created greater confusion.

In a letter sent Friday night by Davis to the mayor, the councilman also expressed concerns that city employees can be fired or demoted just because of an investigation, even if it doesn't lead to charges. Davis added that an investigation alone should not presuppose that an employee is guilty.

Regarding not releasing the tapes, Buttigieg said Capp made clear that the "intentional interception, use, or disclosure of wire and electronic communications" is prohibited by federal law. He added Indiana Code 5-14-3-4(3) prevents disclosure of any records required to be kept confidential by federal law.

G. Robert Blakey, a professor at the Notre Dame Law School and a South Bend resident who wrote the Federal Wiretap Act in 1968, said Friday that people could be indicted if they listen to the tapes. He added he doesn't believe the tapes will ever be released to the public.

Blakey said "electronic privacy" trumps people's rights to want to listen to the tapes, no matter what was said on them. He added it would be illegal for the city to release the tapes to the media.

"It would be a crime for the chief to release it and a crime for you to take it," he told WSBT. "Those are private conversations. The purpose of the federal law was to protect privacy ... privacy of the people who use the phones. And that hasn't changed."

Blakey said the scandal is likely over because no charges were filed. The only way the case could be prolonged, he said, is if the officers on the tapes sued.

Earlier in the day, a newly-formed government watch group, Citizens United for a Better Government, held a news conference at Emmanuel Community Church in downtown to call for the mayor to resign or the group would push for his impeachment. The group also asked for a special prosecutor to be appointed to protect the tapes and investigate the alleged rumors on them.

Terrell Jackson, pastor at Laymen Chapel CME Church and president of the South Bend chapter of the NAACP, attended the meeting but added he is not necessarily associated with the watch group, which was instrumental in bringing Rainbow PUSH representatives to the city last month.

"We need to begin the process of bringing healing to our city," Jackson said. "It's like a sore that you keep picking out and it's infected."

Jackson added that some of that healing would come if the tapes are released.

No one has released much information regarding who is on the tapes. However, Scott Duerring, Karen DePaepe's attorney, said last week that Tim Corbett, commander of the St. Joseph County metro homicide unit, is mentioned on the tapes. It is unclear, though, if his voice is on the tapes and if he made any inappropriate comments.

That information was released after a South Bend officer claimed Corbett threatened them, possibly over the recordings.